Pennsylvania Attorney General Linda Kelly and lawyers representing several state agencies filed briefs with the state Supreme Court on Tuesday, arguing that an appellate court erred when it said portions of Act 13, the state’s new omnibus Marcellus Shale law, were unconstitutional.

“This is a case of the tail wagging the dog,” Kelly said in her filing. “For more than 300 years, Pennsylvania’s General Assembly has been the primary political body vested with the authority to establish policy for the Commonwealth and its citizens. However, the Commonwealth Court’s decision turns the established framework for our republican system of government…on its head by making the rationally based determination of the democratically elected legislature subservient to the zoning decisions and zoning plans of local governments.”

On July 26, the Commonwealth Court ruled 4-3 that Act 13’s zoning restrictions were unconstitutional on the grounds that they violate municipalities’ right to substantive due process (see Shale Daily, July 27). The court also said the law violated the constitutional right to clean air and water, and said the state Department of Environmental Protection’s (DEP) ability to waive setback requirements was also unconstitutional.

In a separate filing, attorneys for the DEP and the state Public Utility Commission (PUC) said Act 13 was a legitimate exercise of the legislature’s broad police powers and its ability to retract municipal powers.

“In striking down the portions of Act 13 related to municipal zoning…the Commonwealth Court failed to acknowledge and uphold the supreme authority of the legislature, failed to give due deference to the presumption of constitutionality afforded to acts of the legislature, and applied an incorrect standard of substantive due process,” attorneys for the DEP and PUC said.

Five of the seven parties designated as amicus curiae in the case — the Pennsylvania Independent Oil and Gas Association (PIOGA), the Marcellus Shale Coalition, Chesapeake Appalachia LLC, MarkWest Liberty Midstream & Resources LLC, Penneco Oil Co. Inc. — also submitted a brief on Tuesday in support of the appellants.

“The decision at issue…allows [several] hostile local ordinances to stand, thus allowing continued, unwarranted and unlawful municipal interference with the responsible development of the substantial investments made in the Commonwealth by industry parties in oil and gas resources and operations,” the parties said, later adding that the lower court’s ruling is forcing the industry “to reevaluate well sites at a cost of tens of thousands of dollars, and may result in reduced operations.”

Kevin Moody, general counsel for PIOGA, told NGI’s Shale Daily a date has not been set for oral arguments in the case but that a briefing schedule was requested based on the court hearing the case during the week of Oct. 15 in Pittsburgh, during a regularly scheduled argument session. “We anticipate that they will issue an order setting argument during that week, but we haven’t seen it yet,” Moody said Wednesday.

Additional amicus briefs in support of the appellants were filed Tuesday by the Pennsylvania chapter of the National Association of Royalty Owners, the Northern Wayne Property Owners Alliance, the Pennsylvania Chamber of Business and Industry, the Pennsylvania Manufacturers’ Association, the National Federation of Independent Business, the Pennsylvania Business Council and the Pennsylvania Chemical Industry Council.

Attorneys for the plaintiffs also submitted briefs Tuesday, asking the high court to reverse the appellate court’s ruling that the Delaware Riverkeeper Network and a doctor from Monroeville, PA, lack legal standing in the matter. The plaintiffs currently include Cecil, Mount Pleasant, Peters and Robinson townships in Washington County, South Fayette Township in Allegheny County, Nockamixon Township and Yardley Borough in Bucks County (see Shale Daily, April 2).

On Aug 15, the Commonwealth Court ordered that an injunction against Act 13’s preemption provision would remain in place pending appeal). But the court did allow the DEP to continue exercising its waiver powers during the appeal process, which the state has requested to be expedited (see Shale Daily, Aug. 17; Aug. 1).

Act 13, which Gov. Tom Corbett signed into law in February, gave shale-rich counties in the state the ability to impose a 15-year impact fee on unconventional gas wells if they agreed to abide by state zoning rules, and it made upgrades to environmental regulations (see Shale Daily, Feb. 15).

The case is Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012).